Table of Contents

The Search for Environmental Justice

The Search for Environmental Justice

The IUCN Academy of Environmental Law series

Edited by Paul Martin, Sadeq Z. Bigdeli, Trevor Daya-Winterbottom, Willemien du Plessis and Amanda Kennedy

This is an extended and remarkable excursus into the evolving concept of environmental justice. This key book provides an overview of the major developments in the theory and practice of environmental justice and illustrates the direction of the evolution of rights of nature. The work exposes the diverse meanings and practical uses of the concept of environmental justice in different jurisdictions, and their implications for the law, society and the environment.

Chapter 6: No private property rights in the atmosphere

Ben France-Hudson

Subjects: environment, environmental law, environmental politics and policy, law - academic, environmental law, politics and public policy, environmental politics and policy


The New Zealand Emissions Trading Scheme (‘NZ ETS’) does not create private property rights in either the atmosphere or greenhouse gases. Neither does it confer a private property right to emit greenhouse gases. Rather, it employs a very restricted private property right that can only be used for an extremely limited range of purposes. In particular, the primary purpose of the private property right at the heart of the regime is simply to enable its holder to discharge a liability that arises as a consequence of undertaking activities that result in greenhouse gas emissions. This observation is important because it addresses the criticism that environmental management regimes which employ private property to solve the tragedy of the commons actually create ‘rights to pollute’. The structure of the NZ ETS neatly avoids creating such a right and this suggests that the risks associated with using private property as a tool of environmental management can be ameliorated. More generally, the way the NZ ETS utilises private property indicates that private property itself may be far more flexible than is often acknowledged. This may provide a further source of support for a number of modern property law theories that stress private property’s essentially social function.

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